June 21, 2023
The claimant in this case was 83. She applied under the Inheritance Act 1987 for reasonable financial provision following the death of her husband of 66 years.
The couple had 6 children, 2 male and 4 female. The husband’s Will did not provide for the wife, only his 2 sons, choosing to pass his assets to the male line of the family. He left the entire estate in equal shares to his sons. The wife had played a full part in the marriage, working within the family clothing business. The entire family wealth was created during the marriage. The wife had been entirely financially dependent upon the husband. After his death she had to rely on state benefits of £12,000 pa. She was registered disabled.
The 2 sons (D2 & D3) were both executors to the estate. D3 and the wife had a poor relationship. The wife moved out of the family home and in with one of her daughters.
The wife’s application was for half of the estate, whatever its value, which would provide her with reasonable financial provision. She estimated the estate at £1.99m gross. D2’s estimate of the estate was £1.2m gross. D2 did not oppose his mother’s claim. D3 returned the application unopened. He was also observed by a process server, to throw further documents into a wheelie bin.
The wife sought an abbreviated final hearing on the basis of the claim being uncontested. She sought interim relief of £20,000.
D3 did not attend the hearing, which was decided in his absence. Justice Peel held that the wife should receive 50% of the net value of the estate, and for £20,000 to be paid to the wife forthwith pending the final distribution. Wife’s legal costs were to be deducted from the gross estate before equal division.
S1-3 of the 1975 act requires the court to ask: a) does the Will fail to make reasonable provision for the wife: b) if so, what should the financial provision be?
Ilott v mitson  s3(2) provided that where the application is by a spouse or former spouse that the court shall have regard to additional factors including the duration of the relationship, the contributions to the relationship and family, and the provision the spouse might have expected had the marriage been terminated by divorce. A surviving spouse should not usually be worse off as a widow than a divorcee would have been.
CPR 1998 Part 8 allows the court flexibility in case management. It was reasonable to determine this case at this hearing, bearing in mind D2 did not contest and D3 chose not to engage. It was thus treated as undefended. The wife accepted her reasonable needs would be met whether the estate was worth £1.2 or £1.9 million. There was some urgency due to her financial position.
This case is important as it highlights the important divorce comparator being applied to a case involving a surviving spouse. It also highlights the anomaly in relation to where Inheritance Act claims must be heard. Whatever the value, the family court has no jurisdiction. Such claims must be issued in the Chancery Division, the Family division or a county court with a chancery district registry. Claims by a spouse will usually be suitable for transfer to the Family Division to be heard by a high court judge, whatever the estate value. This is in contrast to the MCA 1973 where transfer to the high court will not routinely be permitted unless the assets exceed £15 million.
In Ilott, Justice Peel said that such Inheritance cases should routinely be able to be issued in the Family court rather than the Family Division, ‘…however that is a matter for lawmakers.’
This is an important case for Family practitioners to be aware of, particularly in cases where the parties may be elderly or unwell and delays are encountered, or one of the parties dies during proceedings.
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If you have a family case where you require some advice or representation, please contact Mavis for an appointment with a family solicitor on 020 8885 7986.